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HQ 960918




October 21, 1998

CLA-2 RR:CR:GC 960918 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0045

Mr. Allen Sanft
Shelcore Toys
347 Elizabeth Avenue
Somerset, N.J. 08873-1101

RE: "Sprinkles" water sprinkler; NYRL B88748 modified

Dear Mr. Sanft:

This is in reference to your September 5, 1997, letter requesting reconsideration of New York Ruling Letter (NYRL) B88748 dated August 28, 1997, concerning the classification of an article described as "Sprinkles" (item 02650) under subheading 3924.90.5500, of the Harmonized Tariff Schedule of the United States (HTSUS), as other household articles of plastic. A sample, as well as catalog pictures, were submitted for our review. The other articles which were the subject of NYRL B88748 are not in issue and therefore are not addressed in this ruling. In preparing this ruling we have considered the information in your supplemental letter of June 11, 1998.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of the proposed revocation was published on September 16, 1998, in Volume 32, Number 37 of the Customs Bulletin. No comments were received in response to this notice.

FACTS:

"Sprinkles" is a red plastic hydrant-shaped water sprinkler. It measures 7 inches wide and 10 inches high. Decals of a happy face and the phrase "Sprinkles" have been applied to the article's front. A round piece of threaded plastic sized to match a standard garden hose, is attached to the bottom right hand side of the article. There are eight small perforations in the top of the hydrant. Attached to the top of the structure is a yellow plastic dome with a series of large oval shaped perforations. As "Sprinkles" fills with water, pressure builds forcing water out of the small perforations on the top of the article. This forces the yellow dome to spin. As it spins, the water flow is interrupted and water shoots through the dome's perforations at different angles.

According to the information furnished, "Sprinkles" is designed and imported exclusively for Shelcore Toys. It is sold in the toy department of several large drug and retail chains, including but not limited to, Wal-Mart, Walgreens, Valley Toy Distributors, Namco etc. "Sprinkles" is advertised on such stations as TNT, The Family Channel and Nickelodeon. The product line to which "Sprinkles" belongs was researched and designed to target children and their parents.

The catalog describes "Sprinkles" as: "[t]his happy sprinkler pal literally spins his top to delight children with a cool water spray....[a]ges Over 3 years and up. "[s]prinkles flips his lid for kids!" "[t]his happy hydrant's top spins as it sprinkles! [c]onnects easily to any standard garden hose for lots of cool fun on hot days."

ISSUE:

Whether "Sprinkles" is classifiable as a toy under heading 9503, HTSUS, or as other plastic household articles under heading 3924, HTSUS.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The headings under consideration are as follows:

3924 Tableware, kitchenware, other household articles and toilet articles, of plastics

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof

Note 2(v) of Chapter 39, HTSUS, states that: "[t]his chapter does not cover:...[a]rticles of chapter 95 (for example, toys, games, sports equipment.)." Therefore, we must first determine whether "Sprinkles" is classifiable as a toy for tariff purposes. If so, it is excluded from classification in subheading 3924, HTSUS, by operation of Note 2(v) to Chapter 39.

The term "toy" is not defined in the HTSUS. However, in understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The ENs to Chapter 95 state, in pertinent part, that "[t]his chapter covers toys of all kinds whether designed for the amusement of children or adults." Although not set forth as a definition of "toys," we have interpreted the just-quoted passage from the ENs as equating "toys" with articles "designed for the amusement of children or adults," although we believe such design must be corroborated by evidence of the articles' principal use.

When the classification of an article is determined with reference to its principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such use is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the courts have provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

In NYRL A86380 dated August 13, 1996, Customs classified a series of water sprinklers designed for use in watering lawns and gardens in subheading 3924.90.5500, HTSUS. Unlike the lawn sprinklers classified in NYRL A86380, the physical characteristics of "Sprinkles," mainly its bright colors, imitation of a water hydrant and manipulation of water, appeal to a sense of fun and play with water. The ultimate purchaser expects to use this article as a water toy for children, not to water the lawn. It is traded in toy channels by a toy company, not a hardware or housewares company. Its manner of advertisement and display all highlight its amusing qualities. All of these characteristics indicate that "Sprinkles" is designed principally to amuse. As a result of finding "Sprinkles" to be a toy properly classified in Chapter 95, classification in Chapter 39 is precluded.

HOLDING:

"Sprinkles" is classified under subheading 9503.90.0045, HTSUS, which provides for "[o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: [o]ther: [o]ther toys and models," with a general 1998 column one duty rate of free.

NYRL B88748 is modified. In accordance with 19 U.S.C. publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10 (c)(1), Customs Regulations [19 CFR 177.10(c)(1)].

Sincerely,

John Durant, Director
Commercial Rulings Division

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